The High Court has refused Mary Harriet Madden’s challenge to An Bord Pleanála’s refusal of permission for a house and associated works at Roscam, Galway. Mr Justice Cian Ferriter ruled on 4 May 2022 that the Board had a rational basis for finding the application’s Natura Impact Statement deficient in its treatment of birds and potential groundwater impacts.
Galway City Council had granted permission in May 2019, but An Bord Pleanála refused it on appeal in February 2020. The proposal was about 243 metres north of the Galway Bay Complex Special Area of Conservation and the Inner Galway Bay Special Protection Area. The Board’s inspector concluded that significant effects on those sites could not be screened out at the initial assessment stage, so a full appropriate assessment was required.
The inspector identified concerns including the absence of a dedicated bird survey and insufficient detail about construction and operational impacts. These included groundworks that could affect groundwater, contaminated water reaching groundwater, and disturbance to birds. The Board adopted the inspector’s conclusion that it could not be satisfied the development would avoid adverse effects on the protected sites’ integrity.
Madden argued that the inspector had not adequately explained why the evidence was insufficient and had failed to account for reports and other material submitted on her behalf. The judge found that the inspector had considered the relevant material, including the applicant’s response to the appeals. He said the absence of a dedicated bird survey and the notice party’s detailed appeal submission provided a rational basis for the inspector’s concern about the bird data. On groundwater, the judge held that the notice party’s submission identified risks from the proposed groundworks and that assessing the competing material was for the Board’s expert decision-maker, not the court.
The judge also considered an inspector’s statement suggesting that mitigation measures were being used in a way contrary to case law. He said the statement was incorrect in the context of the Stage 2 assessment, where mitigation may be considered. But he found the error was not sufficiently material to invalidate the decision: the inspector had not then refused to consider mitigation, and the other identified deficiencies remained. He added that overturning the decision on that point alone would likely be futile and that he could not direct the Board to seek further information.
A separate argument that the Board should have sought further information about a bird survey was not pleaded and was not permitted. The judge also said the relevant law did not oblige the Board to seek further information. He refused the application for judicial review.